Opinion
CIV-22-683-J
02-08-2023
JESSE A. BREWER, Plaintiff, v. JANE DOE, et. al., Defendants.
REPORT AND RECOMMENDATION
GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a federal prisoner appearing pro se and in forma pauperis, brings this action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Defendant Heather Walker has filed a Motion to Dismiss (Doc. No. 20), to which Plaintiff has responded. Doc. No. 28. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the reasons explained below, the undersigned recommends Defendant's Motion to Dismiss be granted and Plaintiff's claims against the remaining Defendants, who have not been served, be dismissed without prejudice, pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b).
Although Plaintiff purports to bring this action pursuant to 42 U.S.C. § 1983, a § 1983 action is properly brought against defendants acting under color of state law. “A Bivens claim is a constitutional tort claim . . . against federal officers that is the counterpart to a claim against state officers under 42 U.S.C. § 1983.” Howard v. Mendez, 304 F.Supp.2d 632, 633 n.2 (M.D. Pa. 2004). As established herein, during the time period relevant to the Complaint, Defendants were federal employees. Thus, this action is properly brought pursuant to Bivens rather than § 1983.
I. Factual Allegations
On December 2, 2020, the United States Marshal Service (“USMS”) transported Plaintiff from Oklahoma City, Oklahoma to Harrisburg, Pennsylvania by airplane. Doc. No. at 7. Prior to boarding the plane, Plaintiff was dressed in a brown t-shirt and forced to wait outside in cold temperatures. Id. Plaintiff became “boisterous” due to the cold weather and his sparse clothing. Id. In response, United States Marshal Jane Doe utilized her stun gun against him, specifically on Plaintiff's left wrist, arm, and hand. Id. Jane Doe's supervisor, Defendant John Doe, pulled her from the flight following her actions. Id. at 8.
Once aboard the plane, Defendant John Doe asked Plaintiff whether he “was alright.” Id. at 9. Plaintiff responded in the negative and stated that he needed to be “seen by someone medically for the pain, numbness and tightness in my arm, wrist, hand and fingers.” Id. Defendant John Doe “responded sarcastically,” stating, “Wait until the plane lands at the hospital.” Id. However, Plaintiff was not taken to a hospital upon arriving in Pennsylvania. Id.
Upon landing, Plaintiff was forced to again stand outside in a brown t-shirt, this time for one hour, although the temperature was between 30 and 40 degrees. Id. at 11. When he was taken to the Dauphin County Jail, Plaintiff requested medical care and was only given Tylenol. Id. Plaintiff contends he suffered nerve damage and “an innate fear of electricity” as a result of Jane Doe's use of a stun gun. Id. at 11, 13.
By this action, Plaintiff asserts Eighth Amendment claims against Defendant Walker, Assistant Director of the USMS, as well as Defendants John Doe and Jane Doe. Id. at 13, 15. Plaintiff contends they failed to protect him from an unnecessary use of force and/or a substantial risk of serious harm. Id. He also complains they failed to provide him with adequate medical care and specifically, that Defendant John Doe failed to authorize the same. Id. Defendant Walker has filed a Motion to Dismiss arguing, inter alia, that Plaintiff cannot assert a viable claim under Bivens.
II. Standard of Review
A. Failure to State a Claim Upon Which Relief can be Granted
A motion to dismiss may be granted when the plaintiff has “failed to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In applying this standard, a court must assume the truth of all well-pleaded factual allegations in the complaint and construe them in the light most favorable to the plaintiff. See Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011); Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005). To survive a motion to dismiss, a complaint must present factual allegations that “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). This review contemplates the assertion of “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. Thus, “when the allegations in a complaint, however true, could not raise a [plausible] claim of entitlement to relief,” the cause of action should be dismissed. Id. at 558.
A pro se plaintiff's complaint must be broadly construed under this standard. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the generous construction to be given the pro se litigant's allegations “does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). See Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (courts “will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf”).
A court evaluating a Rule 12(b)(6) motion to dismiss may consider the complaint as well as any documents attached to it as exhibits. Bellmon, 935 F.2d at 1112. Additionally, “[a] district court may consider documents (1) referenced in a complaint that are (2) central to a plaintiff's claims, and (3) indisputably authentic when resolving a motion to dismiss without converting the motion to one for summary judgment.” Thomas v. Kaven, 765 F.3d 1183, 1197 (10th Cir. 2014).
B. Screening of Prisoner Complaints
A federal district court must review complaints filed by prisoners proceeding in forma pauperis and/or seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(a). After conducting said review, the court must dismiss a complaint or any portion of it presenting claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b).
In conducting this review, the reviewing court must accept the plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from the allegations, in the light most favorable to the plaintiff. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Although a pro se litigant's pleadings are liberally construed, Haines, 404 U.S. at 520, “[t]he burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 556). The allegations in a complaint must present “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Further, a claim is frivolous “where it lacks an arguable basis either in law or in fact” or is “based on an indisputably meritless legal theory[.]” Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989).
III. Availability of a Bivens Claim
As set forth above, pursuant to Bivens, Plaintiff asserts Eighth Amendment claims against members of the USMS arising from events that occurred during and after his airflight transfer from Oklahoma to Pennsylvania. Bivens and its progeny theoretically permit a damages claim against a federal officer for a deprivation of constitutional civil rights. See Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (“In Bivens - proceeding on the theory that a right suggests a remedy - [the United States Supreme] Court ‘recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights.'” (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001)). Following this formulation, the Supreme Court expanded the remedy recognized in Bivens to a gender discrimination claim under the Fifth Amendment, Davis v. Passman, 442 U.S. 228 (1979), and to a claim of deliberate indifference under the Eighth Amendment arising out of inadequate medical treatment to a prisoner, Carlson v. Green, 446 U.S. 14 (1980). Indeed, “[i]n the early years of Bivens, the [Supreme] Court essentially presumed new Bivens actions were valid ‘unless the action [wa]s defeated in one of two specified ways'-an express declaration from Congress creating a substitute remedy or the existence of ‘special factors' that counselled ‘hesitation.'” Silva v. United States, 45 F.4th 1134, 1139 (10th Cir. 2022) (quoting Carlson, 446 U.S. at 26-27 (Powell, J., concurring) (additional quotations omitted)).
Despite the fact that the Supreme Court held more than forty years ago that an implied private action for damages exists against federal officers alleged to have violated a citizen's constitutional rights, Defendant argues that such a remedy is essentially no longer available. Doc. No. 20 at 21-27. This Court, bound by the decisions of the Supreme Court and the Tenth Circuit, must agree.
As another federal court recently recognized, “The Supreme Court's early amicability towards Bivens actions was short-lived. The Supreme Court has since ‘adopted a far more cautious course' with respect to Bivens actions....Thus, Bivens, Davis, and Carlson ‘represent the only instances in which the [Supreme] Court has approved of an implied damages remedy under the Constitution itself.'” Noe v. United States, No. 21-cv-01589-CNS-STV, 2022 WL 18587706, at *6 (D. Colo. Dec. 14, 2022) (quoting Ziglar v. Abbasi, __ U.S. __, 137 S.Ct. 1843, 1855 (2017)).
In Abbasi, the Supreme Court initially limited Bivens by explaining that a plaintiff could carry forward a Bivens action only so long as a court determined the action could satisfy a two-step set of screening/limiting factors before considering the merits. Abbasi, 137 S.Ct. at 1854. The first step was to determine whether a case presented a new Bivens context, the proper test for which required a court to consider whether “the case [was] different in a meaningful way from previous Bivens cases decided by [the United States Supreme] Court[.]” Id. at 1859. If so, then the Court examined whether there was any alternative remedial structure present or other “special factor counselling hesitation” in creating an implied damages remedy. Id. at 1858. Applying this two-step regime, courts arrived at inconsistent outcomes in considering whether a Bivens remedy was available. See Noe, 2022 WL 18587706, at *6 (listing cases with inconsistent rulings on similar constitutional claims).
In 2022, the Supreme Court further limited Bivens in Egbert v. Boule, ___U.S. ___, 142 S.Ct. 1793 (2022).
[In Egbert, t]he Court emphasized that “recognizing a cause of action under Bivens is ‘a disfavored judicial activity,'” and that “‘[e]ven a single sound reason to defer to Congress' is enough to require a court to refrain from creating such a remedy.” Egbert, 142 S.Ct. at 1803 ([] quoting Ziglar, 137 S.Ct. at 1856-57[;] Nestle USA, Inc. v. Doe, 141 S.Ct. 1931, 1937 (2021) (plurality opinion)). The Court explained its two-step approach that “inform[s] a court's analysis of a proposed Bivens claim”-i.e., whether the case arises in a new context and whether special factors counsel against recognizing a Bivens remedy-but clarified that “those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Id. at 1803. Put differently, “[a] court faces only one question [in conducting a Bivens inquiry]: whether there is any rational reason (even one) to think that Congress is better suited to ‘weigh the costs and benefits of allowing a damages action to proceed.'” Id. at 1805 (quoting Ziglar, 137 S.Ct. at 1858).Noe, 2022 WL 18587706, at *7. The Court further explained that “[s]o long as Congress or the Executive has created a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess that calibration by superimposing a Bivens remedy.” Egbert, 142 S.Ct. at 1807.
In light of this reasoning, it is unsurprising Egbert found a Bivens remedy was not available to the plaintiff. The Court relied on the fact that, inter alia, “Congress ha[d] provided alternative remedies for aggrieved parties in [Plaintiff's] position that independently foreclose a Bivens action here.” Id. at 1806. This was true even though the Court recognized “Bivens and this case . . . arguably present ‘almost parallel circumstances'” (quoting Abassi, 137 S.Ct. at 1859); see also id. at 1810 (Gorsuch, J., concurring) (noting the “set of facts [presented did not] differ[ ] meaningfully from those in Bivens itself.”); id. at 1815 (Sotomayor, J., concurring in part and dissenting in part) (“At bottom, [Plaintiff's] claim is materially indistinguishable from the claim brought in Bivens.”).
In Silva, the Tenth Circuit applied Egbert and concluded that expanding Bivens “is an action that is impermissible in virtually all circumstances.” Silva, 45 F.4th at 1140; see also id. at 1140-41 (noting the similarity between the facts in Egbert and those in Bivens, and questioning whether any circumstances could exist where there would be no reason to think that Congress was better equipped than the courts to create a cause of action). The Tenth Circuit stated that “the Supreme Court appeared to alter the existing two-step Bivens framework” and emphasized what it viewed as “the key takeaway from Egbert, namely, that courts may dispose of Bivens claims for ‘two independent reasons: Congress is better positioned to create remedies in the [context considered by the court], and the Government already has provided alternative remedies that protect plaintiffs.'” Id. at 1139, 1141 (quoting Egbert, 142 S.Ct. at 1804).
In Silva, the plaintiff had alleged the federal officer-defendant came to his cell while the plaintiff was restrained and physically assaulted him after falsely accusing him of assaulting the officer-defendant. Silva, 45 F.4th at 1136. The Tenth Circuit held that the existence of the Bureau of Prisons (“BOP”) Administrative Remedy Program constituted an adequate alternative remedy that foreclosed the plaintiff's Bivens claim against a BOP corrections officer. Id. at 1141. The Tenth Circuit declined to address whether there was any reason to think Congress or the courts might be better equipped to create a damages remedy with respect to the plaintiff's claim. Id. at 1141 n.5.
Thus, pursuant to Egbert and Silva, if an alternative remedial structure exists, that alone provides an “independent means of disposing of Bivens claims,” regardless of their context. Id. at 1141. Under these precedents, this Court must conclude that a Bivens remedy is not available to Plaintiff.
As argued by Defendant and recently recognized by the Northern District of Oklahoma, Plaintiff has alternative remedies available to obtain redress for the alleged misconduct of a United States Marshal.
Individuals who assert that USMS personnel engaged in misconduct may file an administrative grievance online with the USMS or through the mail with the Office of General Counsel for the USMS. See Complaint Regarding USMS Personnel or Programs, https://www.usmarshals.gov/forms/complaint-form.pdf (last visited Jan. 5, 2023); Instructions For Submitting An Administrative Tort Claim With The United States Marshals Service, https://www.usmarshals.gov/resources/publications/instructions-submitting-administrative-tort-claim-us-marshals-service (last visited Jan. 5, 2023). In turn, the Director of USMS shall investigate
any “alleged improper conduct” of USMS personnel. 28 C.F.R. § 0.111(n).
Individuals also can report misconduct related to a USMS employee to the Department of Justice's Office of the Inspector General (OIG).” https://www.usmarshals.gov/report-fraud-waste-and-abuse (last visited Jan. 5, 2023); see also Complaint to DOJ Office of Inspector General, https://oig.justice.gov/hotline/submitcomplaint.
In turn, the Attorney General (through the Department of Justice's OIG) has authority to investigate any alleged misconduct. See 28 C.F.R. § 0.5(a) (Attorney General shall supervise and direct administration and operation of DOJ, including offices of U.S. Marshals, which are within DOJ); Report to Congress on Implementation of Section 1001 of the USA PATRIOT Act, No. 22-102 (Sept. 2022), https://oig.justice.gov/sites/default/fLles/reports/22-102.pdf (last visited Jan. 5, 2023) (OIG may “investigate allegations of criminal wrongdoing or administrative misconduct” by DOJ employee or refer such allegations to agency internal affairs office).Logsdon v. U.S. Marshal Service, No. 21-253-KHV, 2023 WL 205052, at *4 n.2 (N.D. Okla. Jan. 13, 2023).
Although not raised by Defendant herein, the Logsdon decision also noted that a plaintiff alleging misconduct on the part of a United States Marshal could pursue a claim under the Federal Tort Claims Act (“FTCA”) or 31 U.S.C. § 3724. Id. (citing FTCA, 28 U.S.C. § 2679(b)(1) (suit against United States exclusive remedy for injury resulting from negligent or wrongful conduct of government employee while acting within scope of office or employment); 31 U.S.C. § 3724(a) (if claim may not be settled under FTCA, Attorney General may settle claim for up to $50,000 for personal injury, death, or property damage by federal investigative or law enforcement officer).
The Tenth Circuit's decision in Silva effectively forecloses Plaintiff's claims in this lawsuit. As the Tenth Circuit stated, “[i]n the years since it first expressed caution at the prospect of expanding Bivens, the [Supreme] Court has performed its own version of Bonaparte's retreat from Moscow and progressively chipped away at the decision-to the point that very little of its original force remains.” Silva, 45 F.4th at 1138-39. The availability of alternative remedies, without regard to their realistic utility, provides “sufficient ground to foreclose [Plaintiff's] Bivens claim.” Id. Thus, this Court finds that the existence of the administrative remedy set forth above, in addition to potential claims under the FTCA and 31 U.S.C. § 3724, forecloses the availability of a Bivens remedy against Defendant Walker.
Additionally, the same reasoning applies to foreclose Plaintiff's Eighth Amendment claims against Defendants John Doe and Jane Doe. Accordingly, Plaintiff's claims against them should be dismissed based upon failure to state a claim, pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b).
In light of the recommended disposition, it is unnecessary for the Court to address Defendant's remaining bases for her request for dismissal.
RECOMMENDATION
Based on the foregoing findings, it is recommended Defendant Heather Walker's Motion to Dismiss (Doc. No. 20) be GRANTED. Additionally, based upon the same findings, Plaintiff's Eighth Amendment claims against Defendants John Doe and Jane Doe should be dismissed based upon failure to state a claim, pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b).
Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by February 28th , 2023, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.